[Introduced February 14, 2012; referred to the Committee on
Health and Human Resources; and then to the Committee on the
Judiciary.]

____________

A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-2M-1, §16-2M-2,
§16-2M-3, §16-2M-4, §16-2M-5, §16-2M-6, §16-2M-7, §16-2M-8,
§16-2M-9 and §16-2M-10, all relating to abortions generally;
protecting unborn children who are capable of experiencing
pain by prohibiting abortion after twenty weeks
postfertilization except when the mother has a medical
emergency; providing for civil remedies and remedies at law;
stating legislative findings; definitions; creating felony
criminal penalties; and creating a special revenue fund known
as the West Virginia Pain-Capable Unborn Child Protection Act
Litigation Fund.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-2M-1, §16-2M-2,
§16-2M3, §16-2M-4, §16-2M-5, §16-2M-6, §16-2M-7, §16-2M-8, §16-2M-9
and §16-2M-10, all to read as follows:

ARTICLE 2M. THE PAIN-CAPABLE UNBORN CHILD PROTECTION ACT.

§16-2M-1. Legislative findings.

The Legislature makes the following findings:

(a) Pain receptors (unborn child’s entire body nociceptors)
are present throughout the body no later than sixteen weeks after
fertilization and nerves link these receptors to the brain’s
thalamus and subcortical plate by no later than twenty weeks.

(b) By eight weeks after fertilization, the unborn child
reacts to stimuli that would be recognized as painful if applied to
an adult human, for example by recoiling.

(c) In the unborn child, application of painful stimuli is
associated with significant increases in stress hormones known as
the stress response.

(d) Subjection to painful stimuli is associated with long-term
harmful neuro-developmental effects, such as altered pain
sensitivity, and possibly, emotional, behavioral and learning
disabilities later in life.

(e) For the purposes of surgery on unborn children, fetal
anesthesia is routinely administered and is associated with a
decrease in stress hormones compared to their level when painful
stimuli is applied without the anesthesia.

(f) The position, asserted by some medical experts, that the
unborn child is incapable of experiencing pain until a point later
in pregnancy than twenty weeks after fertilization predominately
rests on the assumption that the ability to experience pain depends
on the cerebral cortex and requires nerve connections between the
thalamus and the cortex. However, recent medical research and
analysis, especially since 2007, provides strong evidence for the
conclusion that a functioning cortex is not necessary to experience
pain.

(g) Substantial evidence indicates that children born missing
the bulk of the cerebral cortex, those with hydranencephaly,
nevertheless experience pain.

(h) In adults, stimulation or ablation of the cerebral cortex
does not alter pain perception, while stimulation or ablation of
the thalamus does.

(i) Substantial evidence indicates that structures used for
pain processing in early development differ from those of adults,
using different neural elements available at specific times during
development, such as the subcortical plate, to fulfill the role of
pain processing.

(j) Consequently, there is substantial medical evidence that
an unborn child is capable of experiencing pain by twenty weeks
after fertilization.

(k) It is the purpose of the state to assert a compelling
state interest in protecting the lives of unborn children from the
stage at which substantial medical evidence indicates that they are
capable of feeling pain.

§16-2M-2. Definitions.

For purposes of this article, the following words have the
following meanings:

(a) "Attempt to perform or induce an abortion" means an act,
or an omission of a statutorily required act, that, under the
circumstances as the actor believes them to be, constitutes a
substantial step in a course of conduct planned to culminate in the
performance or induction of an abortion in this state in violation
of the provisions of section five, article nine, chapter sixty-two
of this code.

(b) “Fertilization” means the fusion of a human spermatozoon
with a human ovum.

(c) "Medical emergency" means a condition that, in reasonable
medical judgment, so complicates the medical condition of a
pregnant woman that it necessitates the immediate abortion of her
pregnancy without first determining post-fertilization age to avert
her death or for which the delay necessary to determine post-fertilization age will create serious risk of substantial and
irreversible physical impairment of a major bodily function. No
condition may be considered a medical emergency if based on a claim
or diagnosis that the woman will engage in conduct which would
result in her death or in substantial and irreversible physical
impairment of a major bodily function.

(d) "Physician" means a person with an unlimited license to
practice medicine or osteopathic medicine under the provisions of
section one, article fourteen, chapter thirty of this code.

(e) "Post-fertilization age" means the age of the unborn child
as calculated from the fertilization of the human ovum.

(f) "Probable post-fertilization age of the unborn child"
means what, in reasonable medical judgment, will with reasonable
probability be the post-fertilization age of the unborn child at
the time an abortion is planned to be performed.

(g) “Reasonable medical judgment” means a medical judgment
that would be made by a reasonably prudent physician, knowledgeable
about the case and the treatment possibilities with respect to the
medical conditions involved.

(h) "Unborn child" or “fetus” each mean an individual organism
of the species homo sapiens from fertilization until live birth.

(i) “Woman” means a female human being whether or not she has
reached the age of majority.

§16-2M-3. Determination of post-fertilization age.

(a) Except in the case of a medical emergency, no abortion may
be performed or induced or be attempted to be performed or induced
unless the physician performing or inducing it has first made a
determination of the probable post-fertilization age of the unborn
child or relied upon such a determination made by another
physician. In making this determination, the physician shall make
such inquiries of the woman and perform or cause to be performed
such medical examinations and tests as a reasonably prudent
physician, knowledgeable about the case and the medical conditions
involved, would consider necessary to perform in making an accurate
diagnosis with respect to post-fertilization age.

(b) Failure by any physician to conform to any requirement of
this section constitutes “unprofessional conduct” pursuant to the
provisions of section one, article fourteen, chapter thirty of this
code.

§16-2M-4. Abortion of unborn child of twenty or more weeks post-fertilization age prohibited.

(a) No person may perform or induce, or attempt to perform or
induce, an abortion upon a woman when it has been determined, by
the physician performing or inducing or attempting to perform or
induce the abortion or by another physician upon whose
determination that physician relies, that the probable post-fertilization age of the woman’s unborn child is twenty or more
weeks, unless there is reasonable medical judgment that she has a
condition which so complicates her medical condition as to
necessitate the abortion of her pregnancy to avert her death or to
avert serious risk of substantial and irreversible physical
impairment of a major bodily function, not including psychological
or emotional conditions. No such greater risk may be determined to
exist if it is based on a claim or diagnosis that the woman will
engage in conduct which she intends to result in her death or in
substantial and irreversible physical impairment of a major bodily
function.

(b) When an abortion upon a woman whose unborn child has been
determined to have a probable post-fertilization age of twenty or
more weeks is not prohibited by subsection (a) of this section, the
physician shall terminate the pregnancy in the manner which, in
reasonable medical judgment, provides the best opportunity for the
unborn child to survive, unless, in reasonable medical judgment,
termination of the pregnancy in that manner would pose a greater
risk either of the death of the pregnant woman or of the
substantial and irreversible physical impairment of a major bodily
function, not including psychological or emotional conditions, of
the woman than would other available methods. No such greater risk
may be determined to exist if it is based on a claim or diagnosis
that the woman will engage in conduct which she intends to result
in her death or in substantial and irreversible physical impairment
of a major bodily function.

§16-2M-5. Reporting.

(a) Any physician who performs or induces or attempts to
perform or induce an abortion shall report to the Division of
Health, on a schedule and in accordance with forms and rules
adopted and promulgated by the Department of Health and Human
Resources, that include:

(1) Post-fertilization age:

(A) If a determination of probable post-fertilization age was
made, whether ultrasound was employed in making the determination,
and the week of probable post-fertilization age determined.

(B) If a determination of probable post-fertilization age was
not made, the basis of the determination that a medical emergency
existed.

(3) Whether an intra-fetal injection was used in an attempt to
induce fetal demise (such as, but not limited to, intrafetal
potassium chloride or digoxin);

(4) Age and race of the patient;

(5) If the probable post-fertilization age was determined to
be twenty or more weeks, the basis of the determination that the
pregnant woman had a condition which so complicated her medical
condition as to necessitate the abortion of her pregnancy to avert
her death or to avert serious risk of substantial and irreversible
physical impairment of a major bodily function, not including
psychological or emotional conditions;

(6) If the probable post-fertilization age was determined to
be twenty or more weeks, whether or not the method of abortion used
was one that, in reasonable medical judgment, provided the best
opportunity for the unborn child to survive and, if such a method
was not used, the basis of the determination that termination of
the pregnancy in that manner would pose a greater risk either of
the death of the pregnant woman or of the substantial and
irreversible physical impairment of a major bodily function, not
including psychological or emotional conditions, of the woman than
would other available methods.

(b) Reports required by subsection (a) of this section may not
contain the name or the address of the patient whose pregnancy was
terminated, nor may the report contain any other information
identifying the patient, except that each report shall contain a
unique medical record identifying number, to enable matching the
report to the patient’s medical records. These reports shall be
maintained in strict confidence by the department, may not be
available for public inspection, and may not be made available
except:

(1) To the Attorney General or a prosecuting attorney with
appropriate jurisdiction pursuant to a criminal investigation;

(2) To the Attorney General or a prosecuting attorney pursuant
to a civil investigation of the grounds for an action under
subsection (b), section seven of this article; or

(3) Pursuant to court order in an action under section seven
of this article.

(c) By June 30 of each year the Department of Health and Human
Resources shall issue a public report providing statistics for the
previous calendar year compiled from all of the reports covering
that year submitted in accordance with this section for each of the
items listed in subsection (a) of this section. Each such report
shall also provide the statistics for all previous calendar years
during which this section was in effect, adjusted to reflect any
additional information from late or corrected reports. The
Department of Health and Human Resources shall take care to ensure
that none of the information included in the public reports could
reasonably lead to the identification of any pregnant woman upon
whom an abortion was performed, induced or tempted.

(d) Any physician who fails to submit a report by the end of
thirty days following the due date shall be subject to a late fee
of $1,000, for each additional thirty-day period or portion of a
thirty-day period the report is overdue. Any physician required to
report in accordance with this article who has not submitted a
report, or has submitted only an incomplete report, more than six
months following the due date, may, in an action brought by the
department, be directed by a court of competent jurisdiction to
submit a complete report within a period stated by court order or
be subject to civil contempt. Intentional or reckless failure by
any physician to conform to any requirement of this section, other
than late filing of a report, constitutes “unprofessional conduct”
pursuant to the provisions of section one, article fourteen,
chapter thirty of this code. Intentional or reckless failure by any
physician to submit a complete report in accordance with a court
order constitutes “unprofessional conduct” pursuant to the
provisions of section one, article fourteen, chapter thirty of this
code. Intentional or reckless falsification of any report required
under this section is a misdemeanor.

(e) Within ninety days of the effective date of this article,
the Department of Health and Human Services shall adopt and
promulgate forms and regulations to assist in compliance with this
section. Subsection (a) of this section shall take effect so as to
require reports regarding all abortions performed or induced on and
after the first day of the first calendar month following the
effective date of the rules.

§16-2M-6. Criminal penalties.

Any person who intentionally or recklessly performs or induces
or attempts to perform or induce an abortion in violation of this
article is guilty of a felony and, upon conviction thereof, shall
be fined not more than $5,000 or imprisoned in a state correctional
facility not less than one year, or both fined and imprisoned. No
penalty may be assessed against the woman upon whom the abortion is
performed or induced or attempted to be performed or induced.

§16-2M-7. Civil remedies.

(a) Any woman upon whom an abortion has been performed or
induced in violation of this article, or the father of the unborn
child who was the subject of such an abortion, may maintain an
action against the person who performed or induced the abortion in
intentional or reckless violation of this article for actual and
punitive damages. Any woman upon whom an abortion has been
attempted in violation of this article may maintain an action
against the person who attempted to perform or induce the abortion
in an intentional or reckless violation of this article for actual
and punitive damages.

(b) A cause of action for injunctive relief against any person
who has intentionally or recklessly violated this article may be
maintained by the woman upon whom an abortion was performed or
induced or attempted to be performed or induced in violation of
this article, by: (1) Any person who is the spouse, parent, sibling
or guardian of, or a current or former licensed health care
provider of, the woman upon whom an abortion has been performed or
induced or attempted to be performed or induced in violation of
this article; (2) by a prosecuting attorney with appropriate
jurisdiction; or (3) by the Attorney General. The injunction shall
prevent the abortion provider from performing or inducing or
attempting to perform or induce further abortions in violation of
this article in this state.

(c) If judgment is rendered in favor of the plaintiff in an
action described in this section, the court shall also render
judgment for a reasonable attorney's fee in favor of the plaintiff
against the defendant.

(d) If judgment is rendered in favor of the defendant and the
court finds that the plaintiff's suit was frivolous and brought in
bad faith, the court shall also render judgment for a reasonable
attorney's fee in favor of the defendant against the plaintiff.

(e) No damages or attorney’s fee may be assessed against the
woman upon whom an abortion was performed or induced or attempted
to be performed or induced except in accordance with subsection (d)
of this section.

§16-2M-8. Protection of privacy in court proceedings.

In every civil or criminal proceeding or action brought under
this article, the court shall rule whether the anonymity of any
woman upon whom an abortion has been performed or induced or
attempted to be performed or induced shall be preserved from public
disclosure if she does not give her consent to such disclosure. The
court, upon motion or sua sponte, shall make such a ruling and,
upon determining that her anonymity should be preserved, shall
issue orders to the parties, witnesses and counsel and shall direct
the sealing of the record and exclusion of individuals from
courtrooms or hearing rooms to the extent necessary to safeguard
her identity from public disclosure. Each such order shall be
accompanied by specific written findings explaining why the
anonymity of the woman should be preserved from public disclosure,
why the order is essential to that end, how the order is narrowly
tailored to serve that interest and why no reasonable less
restrictive alternative exists. In the absence of written consent
of the woman upon whom an abortion has been performed or induced or
attempted to be performed or induced, anyone, other than a public
official, who brings an action under subsection (a) or (b), section
eight of this article shall do so under a pseudonym. This section
may not be construed to conceal the identity of the plaintiff or of
witnesses from the defendant or from attorneys for the defendant.

§16-2M-9. Litigation Defense Fund.

(a) There is created a special revenue fund known as the ”West
Virginia Pain-Capable Unborn Child Protection Act Litigation Fund”
for the purpose of providing funds to pay for any costs and
expenses incurred by the state Attorney General in relation to
actions surrounding defense of this law.

(b) The fund shall be maintained by the Office of the Attorney
General.

(c) The fund shall consist of: (1) Appropriations made to the
account by the Legislature; and (2) any donations, gifts or grants
made to the account.

(d) The fund shall retain the interest income derived from the
moneys credited to the fund.

§16-2M-10. Construction.

This article may not be construed to repeal, by implication or
otherwise, any otherwise applicable provision of West Virginia law
regulating or restricting abortion. An abortion that complies with
this article but violates the provisions of or any otherwise
applicable provision of West Virginia law is unlawful as provided
in that provision. An abortion that complies with the provisions of
or any otherwise applicable provision of West Virginia law
regulating or restricting abortion but violates this article is
unlawful as provided in this article. If some or all of the
provisions of this article are ever temporarily or permanently
restrained or enjoined by judicial order, all other provisions of
West Virginia law regulating or restricting abortion shall be
enforced as though the restrained or enjoined provisions had not
been adopted: Provided, That whenever the temporary or permanent
restraining order of injunction is stayed or dissolved or otherwise
ceases to have effect, the provisions shall have full force and
effect.

NOTE: The purpose of this bill is to protect unborn children
who are capable of experiencing pain by prohibiting abortion after
twenty weeks post-fertilization except when the mother has a
medical emergency, to provide for civil remedies and remedies at
law, and to call for reporting.

This article is new; therefore, strike throughs and
underscoring have been omitted.